Between a rock and a hard place

Taking on the tobacco companies in the lawcourts is no picnic, as Dinyar Godrej explains.

IN 1992 a group of 52 British pensioners united by common misfortune decided to take on Gallaher and Imperial Tobacco in the law courts. Their misfortune was lung cancer contracted after a lifetime of smoking and their tale was about to become a cautionary one.

The wheels of justice ground slow and on 26 February 1999 their case ended. Their suffering, however, did not. The judge decided that because 36 of the group had been diagnosed with cancer more than three years before bringing the legal action their cases could not be allowed. He was not prepared to exercise his discretion on this point of law. He also made clear to the group's legal team his lack of support for the action.1 Meanwhile legal fees on both sides piled up. Having failed to secure legal aid, the plaintiffs and their lawyers had agreed to pursue the case on a ‘no win, no fee' basis. But the tobacco companies had hired, as they tend to do, legal eagles with stratospheric charges. If the companies went after costs, the pensioners would have been bankrupted.

Instead, a deal was struck. The group's lawyers agreed not to pursue the tobacco companies for ten years and not to reveal any of the evidence they had unearthed against them. The message was loud and clear – future legal action against Big Tobacco in Britain would produce equally futile results.

A similarly disappointing outcome marked the case of Australian Rolah McCabe against British American Tobacco. McCabe, who was dying of lung cancer, was initially awarded $485,000 after the court ruled that BAT's destruction of key documents had prevented her from getting a fair trial. But not for long. The Appeal Court overturned the decision in December 2002, ruling that BAT could legally destroy documents if the costs of retrieving them were too great. Rolah McCabe was dead by then but her children vowed to fight on.

In the courtroom the tobacco giant holds the trump card – it can always press for costs, a tactic designed to scare off any litigant. BAT hasn't done so yet in the McCabe case but should the family enter an appeal, there's little doubt it will move to silence them.

As lawyer Peter Gordon, whose firm represented McCabe, put it: ‘These are very, very rich companies, they're very well resourced, they hire the best of lawyers and they leave no stone unturned, and you won't find… a lot of lawyers who are prepared to take those cases on; you generally won't find Legal Aid funds prepared to support them.' 1

In a tangle

Let's be clear – tobacco litigation is not about individuals who make an informed choice to smoke and then go on to whine about the health consequences. Legally they wouldn't have a leg to stand on. It's about people who were misled about the risks of smoking by tobacco companies and about the fraudulent promotion of cigarettes in the face of such risk. It's about claims that a product that can kill you is safe.

The case work involved can be gargantuan. Gordon's firm had a class action against BAT, Philip Morris and Rothmans dismissed because the case would have been too complex and unwieldy. Similar reasons were cited by Canadian judge Warren Winkler earlier this year when he struck down a multimillion- dollar class action suit because it would have taken ‘a thousand years of litigation'. The judge conceded: ‘An individual attempting to pursue litigation would likely find his or her resources taxed beyond sustainable levels.'2 To say nothing of the resultant congestion of the courts with thousands of individual cases.

But such a move to disallow class actions seems to be an emergent trend. In the US, where billion-dollar payouts in tobacco litigation have wowed the news media, last May a Florida appeals court jammed on the brakes. The ‘Engle' trial was the longest civil trial in US history, representing over half a million Florida citizens. In July 2000, a Florida jury ordered the tobacco industry to pay a phenomenal $145 billion in punitive damages. Three years later, the appeals court suddenly decided each of those half million cases would need to be tried individually. This decision is now being appealed against. But if anyone thought the legal battle in the US was over, they had better think again.

Tobacco-related litigation in the US has a long track record. But of the 800 cases between 1950 and 1993 none were successful and only 23 reached trial.

Since then victories have been more numerous but money has mainly gone to the state to recover medical costs, not to individuals whose lives have been blighted by the weed. Any legal challenge has to put up with ferocious defence, resistance to supplying documents, and constant attempts to delay trials in order to drain the plaintiff's resources. Delays also mean complainants can die before the case comes to trial. Meanwhile, the company engages in a PR blitz and lobbies political players and local authorities to try and damage the case.

Let's be clear – tobacco litigation is not about individuals who make an informed choice to smoke and then go on to whine about the health consequences

Currently all eyes are on a whopping $289-billion lawsuit by the US Justice Department against the world's leading tobacco companies. Scheduled to commence in September 2004, it aims to recover healthcare costs and punish the companies for fraudulent claims regarding the dangers of their product. But in 2001 the Department of Justice began leaking the story that it had a weak case and was seeking a settlement. Campaigners smelt a rat. The Tobacco Products Liability Project asked: ‘Could it be that, as the beneficiary of huge campaign largesse from the tobacco industry, the Bush Administration is afraid of winning the case?' And so it goes.

What must be remembered in all of this is that even mindboggling settlements are a blip in the industry's ocean of resources. If they're feeling pinched, they raise cigarette prices and can swiftly make up their losses. So while litigation to recover health costs is important, it would be far better if it resulted in legislation that sought to bring down the health toll in the first place. Regulation is a much more potent weapon than litigation can ever be.

ABC Radio National's The Law Report programme (20 June 2000) – ‘Tobacco Litigation – Is There a Smoking Gun?'

‘Tobacco lawsuit thrown out', 5 February 2004, and ‘Judge quashes tobacco lawsuit', 6 February 2004, both from the Toronto Star.

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